' Hafiz Fazalur Rehman son of Zikur Rehman, in whose favour a permanent transfer deed was issued by the Deputy Settlement Commissioner, Karachi, on 16-1-1974 against which revision application had been preferred by respondents Nos. 2 and 3 had filed the instant petition against the order passed by the Additional Settlement Commissioner (Judicial), Karachi on 29-6-1974 whereby he set aside the aforesaid order dated 22-10-1973 holding that the transfer was of non-existing property which consequently was illegal and infructuous.
2. The petitioner died after the institution of the petition and has been succeeded by his legal heirs numbering 1 to 7 who are also the successorsin-interest.
3. The impugned order of respondent No. 1 has been assailed on the following grounds:-
(i) That after issuance of the permanent transfer deed in respect of property, in question the Settlement Department had become functus officio and has no jurisdiction to precede with the matter.
(ii)That the revision application preferred by respondents Nos. 2 and 3 was time barred as the order of transfer was made on 22-10-1973 and the P. T. D. Was issued to the petitioner on 16-1-1974 whereas the revision application was preferred by respondents Nos. 2 and 3 on 16-1-1974.
(iii) That respondents Nos. 2 and 3 had themselves made an application under section 5 of the Limitation Act for condonation of delay on which respondent No. 1 failed to pass any order.
4. The facts as stated by the petitioner are as under: ' That on or about 15-1-1951 the petitioner occupied third floor of the building situated on plot of land bearing No, N. P. 2/13, situated at Mithadar, Karachi which consisted of two rooms and other amenities of life and was evacuee property. On 12-4-1973 he made an application to the Deputy Settlement Commissioner, Karachi, stating that he was in possession and occupation of the said premises since 15-1-1958 and was ready to pay all the dues of rent in respect of the said premises and prayed for transfer of the same to him at reasonable price. It was further the case of the petitioner that on 18-4-73 an Inspector of the Settlement Department inspected the premises in question and submitted his report in which he had endorsed the fact that the petitioner was in occupation of two rooms which were existing on the third floor of the said building. On 26-4-1973 the Deputy Settlement Commissioner (II), Karachi, had himself Inspected the premises in question and had mentioned that the petitioner was living in the rooms on the top floor and since the construction was old he assessed the same at rental of Rs, 10 p. m. And assigned a tenement No, 3/1 to the said premises. He had ordered that entries in the record be made accordingly. On or about 21-7-73 the petitioner filed an application before the Deputy Settlement Commissioner, Karachi for transfer of the said property to him. He filed another application on 15-10-1973 for the same purpose. It is further stated that the Deputy Settlement Commissioner, Karachi passed an order on 22-10-8973 mentioning that tenement No, 3/1 in possession of the petitioner was available for disposal and keeping in view the dangerous condition of the building transferred it to him at 70% of the evaluation price which came to Rs, 3,360, under para. 5 of the Revised Settlement Scheme No, VIII. The petitioner cleared the transfer price and other dues on 1-1-1974 when a permanent transfer deed was issued by the Deputy Settlement Commissioner, Karachi, on 16-1- 1974.
5. It was further the case of the petitioner that respondents Nos. 2 and 3 preferred a time-barred revision application under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, along with the application under section 5 of the Limitation Act for condonation of delay. The Additional Settlement Commissioner, Karachi issued notice on the said revision application to the petitioner for appearance on 22-6-1974 but since the petitioner was at Lahore he arrived at Karachi day before the date of hearing and appeared along with his counsel before the respondent No. 1 on 22-6-1974. It is contented on behalf of the petitioner that after hearing the petitioner and respondents Nos. 2 and 3, the respondent No. 1, fixed the case for orders on 29-6-1974 on which date at about 5 O'clock he passed the impugned order.
6. The statements in the petition were controverted in counter-affidavit filed on behalf of the respondents Nos. 2 and 3 on 15-11-1974 and till this day no rejoinder affidavit has been filed by the petitioner. Alongwith the counter-affidavit on behalf of respondents Nos. 2 and 3, 16 documents were filed. Briefly stated it is the case of respondents Nos. 2 and 3 that building bearing Nos. N. P.
2/13 and Custodian No, I-D/105, Mithadar; Karachi, is entered in the Custodian as well as K. M. C.
Records as consisting of 4 shops on the ground floor only as G/1, G/2, G/3 and G/4, one tenement on the first and second floors only as 1/1 and 2/1, It is emphatically stated that there was and is no, tenement existing on the third floor of the building. For this assertion the respondents depended on extract from Revision Book maintained by the K. M. C. Pertaining to the years 1948-49 and 1952-53 and photo copy of the extract from the Evacuee Property Register (EPR) maintained by the Custodian. It is their case that the settlement operations started in 1959, and for shops on the ground floor were transferred to the for occupants. Respondent No, 2 subsequently purchased shop No, G/3 from its transferee Sher Ali on 31-8-1973 by a registered sale deed. Shop No, G/4, was subsequently purchased by the petitioner by a registered sale deed on 17-4-1972 in the name of his minor children. Shop No, G/1 has been transferred to Muhammad Ali and Shop No, G/I has been transferred to Abdul Karim. Tenements Nos. 1/1 and 2/1 consisting of the entire first and second floors of the building was transferred by the Settlement Department jointly in the name of respondent No, 3 and Haji Hussain, the late father of respondent No,
2. P. T. D. Had been issued in respect of this tenement on 14-2-1967. It is further the case of the respondents Nos. 2 and 3 that in terms of established policy and practice the respondents became transferees of the roof of the tenement, viz. The third floor.
7. It has been pointed out by respondents Nos. 2 and 3 that the building was in a bad state of repairs and was in delapidated condition with the result that on 9-7-73 the K. M. C. Served a notice upon all the occupants/ transferees of the various portions of the building requiring them to demolish the said building and on receipt of the notice from the K. M. C. The respondents sent a letter requesting for the removal of electric pole and brackets of the said building, since the demolition of the building in question was likely to cause damage or harm to the occupants of the adjoining property. They have produced a copy of the notice sent by registered post. A. D. On 12-7- 73 and the K. E. S. C. Authorities removed the consumer's meter on 12-7-1973. They have brought on record the notice of demolition written by K. E. S. C. On 19-7-1973 and a photo copy of the letter issued by the Administrator, K. M. C. To the District Magistrate, Karachi, asking for magisterial aid for demolition of the building. It would appear that the District Magistrate deputed the S. D. M., Old Town for this purpose by his letter dated 11-3-1973, a copy of which has been filed. The building was accordingly demolished under the supervision of the S. D. M., Old Town and K. M. C. Authorities and after demolition there could be no question of existence of the third floor. It is further contended on behalf of respondents Nos. 2 and 3 that after demolition the respondents got new plan for the construction approved from the K. M. C. On 25-9-73. According to the respondents Nos. 2 and 3 the petitioner who was occupying the adjoining building also purchased Shop No, G/4 by registered sale deed on 17-4-72 in the building. On 12-4-1973 the petitioner is alleged to have made a miscellaneous application before the Deputy Settlement Commissioner, Karachi, stating that there existed a residential tenement on the third floor of the building was in his occupation and which had not been recorded in the Custodian record. It is the case of the respondents that the application was totally misconceived and not maintainable, firstly because no tenement ever existed on the third floor of the building and the petitioner was never in possessions of any portion of the third floor and secondly because the third floor being open roof was a part and parcel of the tenements Nos. 1/1, and 1/2, transferred to the respondents. It is alleged on behalf of respondents Nos. 2 and 3, that the report dated 18-4-1973 by the Inspector which has been brought on record, states that the petitioner was putting up in a room made of cement blocks. They further pointed out that the entire third floor of the building was being assessed at Re. 1 to Rs, 2 p. m. As rent which clearly proves collusion and mala fides. The order of Deputy Settlement Commissioner, passed on 26-4-1973 did mention tenement 3/1 on the third floor of the building and ordered its entry in the relevant record which was actually made on 22-10-1973 whereas at the time of such entry in the record the entire building was not in existence.
8. With regard to ground No. 1 taken by the petitioner it may here be stated that the question is not one of cancelling transfer of property but there was allegation about transfer of non-existing property made fraudulently and therefore, it cannot be said that the Settlement Authorities were functus officio because of the P. T. D. Having been earlier issued in favour of the petitioner.
9. With regard to grounds Nos. 2 and 3 it may be stated that Displaced Persons (Compensation and Rehabilitation) Act, 1958, as amended by Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973, did expressly provide in subsection (5) of section 20 which is with regard to B revision that in computing the period of 15 days referred to in subsection (1) the provisions of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908) shall apply and therefore since the amendment had taken plate on 30th July, 1973 the provision of section 5 of the Limitation Act were applicable. However, as already stated respondents Nos. 2 and 3 who are the transferee of tenements Nos. 1 and 2 were aggrieved persons who had no notice about the C order of the Deputy Settlement Commissioner in favour of the petitioner which was not passed in their presence. There was therefore infringement of the principle of natural justise, audi alteram partem.
10. Since there were allegations of fraud the provisions of section 18 of the Limitation Act of 1908, applied to the case. The aforesaid section reads as under:- "18. Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the little on which it is founded or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application-
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or in the case of concealed document, when he first had the means of producing it or compelling its production."
' In the counter-affidavit filed on behalf of the respondents Nos. 2 and 3 they had made it clear that they were not given any notice of the proceedings and were not heard by the Deputy Settlement Commissioner, although their rights were very seriously and adversely affected by the order. It has been stated in the affidavit that respondents came to know of the passing of the order on 22-5- 1974 when they applied for an urgent certified copy which was made available on 6-6-1974 where after they engaged their Advocate and filed a revision application under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Since no affidavit in rejoinder was filed limitation according to law is to be accounted from the date of knowledge of the impugned order. It is further explained by them that the application for condo nation of delay under section 5 of the Limitation Act had been filed by way of abundant caution.
11. The learned Additional Settlement Commissioner, in view of what has been stated above had jurisdiction to hear the revision petition and further looking to circumstances of the case this is not a fit matter in which the discretionary jurisdiction of this Court under Article 199 of the Constitution should be exercised.
12. The petition is, therefore, dismissed and under the circumstances there will be no order as to costs.